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2024 (2) TMI 11 - CESTAT CHANDIGARHRecovery of CENVAT Credit with penalty - denial on the ground that endorsed Bill of Entry is not a proper document for availment of CENVAT credit and Notifications issued for FMC and DFCE Scrips do not provide for transfer of credit - extended period of limitation - penalty u/r 26 of CER - HELD THAT:- Mere non-mention of the appellant as the supporting manufacturer, cannot take away the substantial benefit of CENVAT credit, looking into the fact that the appellant’s name is mentioned in the Bills of Entry as a supporting manufacturer. Moreover, as submitted by the learned Counsel for the appellants, there is no bar on the importer to send the goods for job-work. It is not mentioned in the notifications under discussion that the job-worker should be a job-worker who is working under the provisions of Notification No.214/86. The fact that the ownership of the goods always remained with the importer i.e. M/s Hero Exports Ltd, the activity undertaken by the appellants is that of a mere job-worker. Further, if it was the case of the Department that the conditions of Customs Notification have been violated by the importer i.e. M/s Hero Exports Ltd, the importer should have been proceeded against for any such violation and not the appellant - the appellants having received the goods in the factory; having used the same in the manufacture and clearance of excisable goods cleared on payment of duty cannot be dis-entitled to the benefit of CENVAT credit. Extended period of limitation - HELD THAT:- The Department is not free to change the stand detrimental to the appellant/ assessee. Moreover, having issued the show-cause notice, it is not free for the Department to invoke extended period in the impugned show-cause notices which are subsequent to the show-cause notice dated 08.05.2009. Further, no element of suppression, mis-statement, fraud, collusion etc. with intent to evade payment of duty has been established against the appellants. Therefore, the Department has not made out any case for invocation of extended period - the impugned show-cause notices are barred by limitation. Penalties u/r 26 of CER - HELD THAT:- When the demand itself cannot be sustained, the question of imposition of penalties does not arise - the submissions of the learned Counsel for the appellants is agreed that penalty, under Rule 26, cannot be imposed on companies. Appeal allowed.
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